The death toll of Spain’s civil war and the subsequent forty-year dictatorship that ruled the country is still debated, but estimate figures rest between 150,000 and 200,000 people.
Many, if not most, of those bodies still lay in mass graves, unidentified, and those who participated in mass executions, street killings, and illegal imprisonment under Franco’s regime, received amnesty for their crimes.
Baltasar Garzón, the Spanish judge who attempted to investigate the crimes and uncover the mass graves, and who was subsequently charged with prevarication for the allegedly illegal investigation, was acquitted by the Supreme Court last week.
Garzón had been charged with bypassing a 1977 law which granted amnesty to crimes committed by former Spanish dictator Francisco Franco, after he began an investigation into the disappearances of over 100,000 people between 1936 and 1951.
The trial was the last of three in which Garzón had been accused of abusing his authority to subvert the cause of justice.
And though he has not been found guilty of prevarication, the damage has been done: Garzón has been disbarred from his role as judge for 11 years for illegal wiretapping.
This was part of an investigation nicknamed the Gürtel case, which looked into bribery and money laundering involving Prime Minister Mariano Rajoy and his party, the Popular Party.
These timely accusations have raised a number of suspicions among the Spanish left, that the PP is trying to get rid of Garzón.
Not least, because it was two Falangist (far-right) Spanish groups – one of which was founded by the deceased fascist dictator Primo de Rivera’s son, and the second of which had already brought 17 unsuccessful charges against Garzón – that brought the charges against Judge Garzón.
International human rights organisations Amnesty and Human Rights Watch have condemned the trials and urged Spain to continue to prosecute Franco’s crimes.
Counsel for Human Rights Watch, Reed Brody, said “What bitter irony that Garzón is being prosecuted for trying to apply at home the same principles he so successfully promoted internationally”.
And the Head of International Justice at Amnesty International, Marek Marczynski said “It is a scandal that Spain has not yet tackled its dark past.
“What we want to see next is a full investigation into the catalogue of abuses that took place during the Civil War and Franco’s regime. There must be no impunity in Spain for these most horrible crimes.”
The New York Times, for its part, defended Garzón, publishing that he “should be allowed to resume that work at the earliest possible date. Spain needs an honest accounting of its troubled past, not prosecution of those who have the courage to demand it.”
Garzón gained international attention, among others, for indicting Chilean dictator, Augusto Pinochet, leading to his arrest in England in 1998. He also charged Argentinean officer Adolfo Scilingo, who is now imprisoned in Spain, with political murders committed during the country’s dictatorship.
Domestically, Garzón was responsible for the arrest of key members of the Basque terrorist group, ETA, as well as for bringing charges of corruption to Spanish politicians.
But he also built many enemies along his career, especially amongst Spain’s right-wing government and organisations.
At home and abroad, Garzón developed a reputation for his arrogance and he was a publically envied and hated man amongst some of his colleagues.
In September 2008, the judge began an investigation into the crimes committed by Franco’s regime, collecting a list of people who disappeared or been executed.
One month later, he declared himself competent to conduct the investigation, authorising access to 19 mass graves found throughout Spain, amongst them, allegedly, the grave containing Spanish poet Federico García Lorca’s body.
Later that year, the Spanish Audiencia Nacional voted him incompetent to lead the case, and in May 2009, the Supreme Court admitted a complaint against Garzón on charges of prevarication, brought by one of the far-right groups, Manos Limpias.
Despite protests from the public, the case went ahead, dividing opinions between right and left groups and news outlets.
A law professor at the Madrid Complutense University, Jesús Zarzalejos said “Judge Garzón has come to see himself as exceptional, losing sight of himself as just one more judge in the Spanish judicial system, bound by the laws.”
Nonetheless, the international media and legal organisations have defended the judge, whom the New York Times declared “a fearless and controversial prosecutor who has made many enemies over the years”, including Al Qaeda and the Russian mafia.
But international acclaim has not spared Baltasar Garzón. The Spanish High Court expressed that the crimes date back to 1936, and that, though they continued to occur until the 50s, illegal detention was not in the Constitution at this time.
The Court told the Spanish paper El País that “it is unreasonable to argue that an illegal detainee from 1936, whose remains have not been found as of 2006, could still be considered detained after the prescribed period of 20 years.”
That most (in fact, all except one) members of the fascist party who committed these crimes against humanity are dead, is beside the point.
The Spanish public has repeatedly expressed frustration at the country’s refusal to find an answer to those who lost loved ones as a result of the dictatorship, and to condemn the perpetrators of crimes against humanity for their actions, whether they are alive or not.
Renowned Spanish author, Almudena Grandes, recently wrote:
In Spain, with the law in our hands, attacking a dictatorship is synonymous with attacking the democratic State. That’s the effect of the Supreme Court, which has invoked a pre-constitutional law to justify all acts committed by a regime founded upon the proud vindication of its own origins: a coup d’état against democracy in the self-same name of democracy. I know that many years have passed since, and that those guilty of crimes are dead, but this sentence affects the nature of the current State. It glorifies the anomaly that turned Spain into the saddest exception of the 20th century.
Indeed, almost forty years after the dictatorship, the families of the disappeared remain in the dark, and mass graves remain untouched.